Tne decade ago, on July 17th, 1998, I sat in a crowded room in Rome with diplomats from 148 other nations knowing that I failed my country and the world. As head of the United States delegation to the talks creating the International Criminal Court, I rejected the final text of the treaty for the court. Since then, 106 countries, including almost all of our allies, have joined the court while Washington remains outside it.
President Bill Clinton believed the court should be built by the end of the 20th century and as his Ambassador at Large for War Crimes Issues it was my job to make that happen. The United States spearheaded the Yugoslav and Rwanda war crimes tribunals and helped lead the talks culminating in the Rome conference. At Rome we achieved most of our goals: defining the atrocity crimes to be prosecuted (genocide, crimes against humanity and war crimes), affirming the court's structure, general principles of criminal law and due process rights, and deferring cases to national courts unless they are unwilling or unable to prosecute suspects.
The United States wanted only the United Nations Security Council to initiate or approve referrals of atrocity crimes to the court. We opposed independent powers for the prosecutor. But we lost that battle early at Rome and moved on.
The Joint Chiefs of Staff and the late Senator Jesse Helms, chairman of the Foreign Relations Committee then, were breathing down my neck, insisting I do nothing to expose United States soldiers and citizens to the court's jurisdiction. With Secretary of State Madeleine Albright's support, I had proposed going to Rome with a saleable deal that would ensure no liability for Americans during the years of our non-party status, which were certain to be many, in exchange for the kind of court most governments insisted upon and met most of our demands. The Pentagon rejected my proposal and sought full immunity forever. (One year later they asked me to resurrect my proposal but by then it was too late.)
In the Rome conference's final week I obtained Pentagon approval to negotiate one last proposal: Any new party to the treaty could opt out of the court's prosecution of its nationals for committing any crimes against humanity or war crimes, but not genocide, during the first ten years only. This would give the United States and others a transitional period during which to adjust to the court's jurisdiction, observe its performance and then withdraw if desired. The other Security Council permanent members (Britain, France, Russia, China) agreed to advance this proposal which, if adopted, would have enabled our delegation to join consensus on the final draft of the treaty.
But most governments rejected our tardy initiative. The Pentagon told me to forget about seeking any other approval from Washington, which then instructed me to call for a vote just to register American opposition to the final text. I objected because we would go down in flames and only reassert American exceptionalism. We could have recorded dissent with a strong floor statement. But diplomats follow instructions. I voted "no" with Israel and several dictatorships.
Hundreds of delegates and civil society advocates leaped up and cheered our defeat. Sir Frank Berman, the British negotiator, remained seated next to me in a remarkable act of respect. From that moment forward, the United States no longer led the pursuit of international justice.
However, we achieved enough in subsequent negotiations for me to sign the Rome treaty at Mr. Clinton's request on December 31, 2000. (Israel also signed that day.) We recognized there was more work to be done to enable the United States to ratify the treaty. But we handed the incoming Bush administration negotiated proposals and the stature of being a signatory nation to the treaty to advance our concerns in further talks.
True to its anti-treaty philosophy, the new administration abandoned any credible effort and took the unprecedented step of de-activating my signature and launching an assault on the court that realists in Washington only recently have begun to roll back. The neo-cons stoked such paranoia about the court and international justice that the administration's self-destructive plunge into criminal conduct against detainees in the so-called war on terror demonstrated a hideously consistent attitude.
In Washington many lost sight of the court's aim to bring to justice political and military leaders who orchestrate massive atrocity crimes against thousands in lawless regions where national justice fails. The court, entering its seventh year of work, struggles to meet that challenge in Darfur (with Sudan's President Bashir now facing a possible arrest warrant for genocide), Uganda, the Democratic Republic of the Congo, and the Central African Republic.
As the American negotiator I argued that the court would need the United States to function effectively on the global stage. But following years of misconduct under the Bush administration, one might ponder whether it is the United States that needs the International Criminal Court to help restore its credibility and reassert fundamental principles of humanity.
David Scheffer is the Mayer Brown/Robert A. Helman Professor of Law and Director of the Center for International Human Rights at Northwestern University School of Law. He is a former U.S. Ambassador at Large for War Crimes Issues (1997-2001).
Suggested citation: David Scheffer, The US and the International Criminal Court Then and Now, JURIST - Forum, July 16, 2008, http://jurist.org/forum/2008/07/us-and-international-criminal-court.php.
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